Having a valid will in place is essential for planning your estate effectively. When you create and sign a will, it indicates your intentions at the moment. However, your wishes or intentions might change in the future, requiring you to update your current will regarding your estate plan.
It's, therefore, necessary for people to create a new will, revoke/change, or update their current will in certain situations. Still, it's also important that the legal process is followed. Here are the common reasons that could require you to change your estate plan and how easy or difficult the process is.
Common Reasons to Change an Estate Plan
Before we even delve into how easy or difficult it is to change your estate plan, why would someone want to change or update their estate plan? Circumstances change over time, and so do your wishes.
If you have already executed a will, ensuring it's updated to accurately reflect your current frame of mind and wishes is just as important as creating a new will. Here are several reasons that could make you want to change your will after it's finalized.
Divorce and Remarrying: Including Provisions for a New Spouse
If you go through a divorce after executing your will, the divorce invalidates all provisions in your will in favor of your former spouse. North Carolina law also revokes any provision that appoints your former spouse as a Guardian, Executor, Trustee, or Conservator.
However, the divorce does not alter a life insurance policy that names the divorced spouse as the beneficiary.
Changing the will to include provisions for your new spouse is a common reason to amend or change your property or estate plan. However, North Carolina law does not automatically include your new spouse if there's an absence of specific provisions stated in the will. Your new spouse would be required to file an elective share, which would only provide a maximum share of 50% of your estate. The share amount is based upon the years of marriage. It's, therefore, necessary to amend your will upon separation so that you can create a new will by the time you decide to remarry.
Including Provisions for a New Child
The adoption or birth of a new child is another reason to update your will. One of the greatest gifts to your loved ones is establishing an estate plan that will provide for them after you're gone. North Carolina law contains a provision that includes a new child in the inheritance, but there are also exceptions to the rule.
This means that if you had created a will initially, then later adopted a child and left them out of your will but included them as a beneficiary to your life insurance policy, the provision to your will won't apply, and therefore your adopted child won't inherit what you may have intended under your will. In this case, keep in mind that your lack of clarity in the estate plan might be a recipe for fights between your heirs when transferring your assets. Whether you have a newborn or have adopted a child, it's essential to update your will to include their provisions.
Acquisition of New Business/Property, or Disposing of an Asset
Whether you're acquiring a new business or disposing of your asset(s), changing your will depends on how your estate or property is referred to in your original will and how you, as the testator, want your will divided.
For example, if your will gives a particular asset to a specific heir, and you happen to sell the property before your passing, then your heir may not be very quick to accept that they're not inheriting from your will. In addition, conflicts might arise between heirs when one or more heirs expect to still be included in the estate plan.
Therefore, having a will in place is a great way to prevent conflicts and make things simpler for your heirs by being transparent and communicating your decisions in advance. This will help avoid disputes among your heirs. In addition, creating a new will or updating it enables you to simplify your estate plan and eliminate the parts that are no longer relevant in the case of acquiring a new business or disposing of an asset.
For instance, if you make your first will in your 30s while staying in an apartment and later decide to purchase a home, you'll need to update the current version of your will.
How Easy or Hard Is It to Change an Estate Plan?
According to North Carolina law, you retain legal authority until you pass away or lose capacity. However, the law is quite flexible, allows you to destroy, change, or create a new will as long as you're of sound mind. Keep in mind that only the testator holds the power to destroy or change a will, where they must indicate the intent.
Amending Your Will In North Carolina
You can make any changes in your will as you wish, as long as you're competent to make the changes. First, you need to decide and be confident about what changes you want to execute. Is it the distribution scheme of your heirs? Are you changing the order of the executors, or are you changing your beneficiaries? Whatever your reason is, ensure you're clear and confident in the changes, and your lawyer will handle the rest.
Second, to amend your will, you need to follow and execute the same formalities you performed when creating the will. This includes having the will signed, having two independent adult witnesses, and notarization. Amending a will may consist of editing and re-executing the current will or creating a formal amendment (codicil) which is basically a separate document modified but relating to the will itself.
Lastly, creating a codicil to your estate plan documents or replacing your old will eliminates any confusion that would otherwise arise when your heirs sort out your estate plan request for them.
So, how do you make your current will invalid? North Carolina General Statutes indicates that there are two main ways you can make your will invalid:
- Destroy the current will. The statute suggests you follow specific actions to destroy your present will, including physical destruction like tearing or burning, canceling, or obliterating the current document.
- Create a new version. Creating a will with a later date automatically invalidates your older version. In addition, you may also alter the terms of your will by creating an amendment, referred to as a codicil. The codicil can change your will's existing provision. In this case, consider hiring a knowledgeable attorney who will provide you with the necessary information about the legal process for voiding or changing a will.
Apart from cases where fraud or undue influence allegations are involved, a person's motivations to change their will are irrelevant as far as the North Carolina law is concerned. This means that changing your will after it's finalized is not difficult, and you should be able to amend or create a new will as long as you can clearly articulate the changes.
Life changes including changing personal relationships, acquiring/disposing of your property, getting married, or having children, can require you to change the distribution of property in your will. All you need to do is consult a lawyer to help you identify the changes you want and put them into effect.
A North Carolina Estate Planning Attorney Can Help
If you need to replace or update your will in North Carolina, we can help. David Anderson has the experience to help with your estate planning needs to help protect your loved ones after your passing. Contact us to schedule an appointment to discuss your estate planning needs.